Tools for Better Enforcement of EU-Law

Private and public law claims & remedies Instruments for better enforcement of Union law

Prof. Dr. Christoph Busch, Prof. Dr. Oliver Dörr, Prof. Dr. Thomas Groß, Prof. Dr. Mary-Rose McGuire, Prof. Dr. Hans Schulte-Nölke, Prof. Dr. Fryderyk Zoll

Need for research

Union law has long been based on the traditional distinction between public law and private law. The consequences of infringements and the territorial scope of sanctions differ considerably:

Public law

  • Violations of standards are generally sanctioned with conditions, withdrawal of permits or fines
  • Orders issued by national authorities are based on EU law / national law
  • Jurisdiction, applicable law and scope generally run in parallel

Private law

  • The enforcement of rights and obligations is generally left to the beneficiaries
  • Decisions of the civil courts enjoy freedom of judgment
  • Jurisdiction, applicable law and territorial scope do not necessarily run in parallel

The current generation of EU legal acts is of a hybrid nature and therefore entails problems of interpretation and application of the law:

1. indeterminacy of legal consequences

New legal acts provide for a broad canon of obligations for companies and citizens, but remain vague in the provisions on the legal consequences of infringements. As the individual standards/obligations also defy categorization into private/public law, it is unclear which rules of national law are applicable to enforce the law.
Example: What measures are available to safeguard the obligation to grant fair and non-discriminatory access to data under Art. 8 of the draft Data Act?

2. plurality of enforcement mechanisms

Individual legal acts provide for different legal enforcement mechanisms to safeguard their objectives, but do not relate to existing norms of national law.
Example: Are there other civil law claims (injunctive relief, removal) in addition to the claim for damages under Art. 54 DSA?

3. ambiguity of hybrid remedies

Increasingly, there are hybrid forms of enforcement mechanisms that pursue public and private objectives.
Example: Does the triple damage calculation under the Enforcement Directive still follow the principle of in rem restitution or does it also have a preventive, perhaps even punitive character?

First sub-project: Data protection law

The uncertainty as to whether the intended claims and legal remedies exist alongside each other or are mutually exclusive also arises in the case of unauthorized data use and disclosure. The lack of clarity leads to incalculable liability risks and represents an obstacle to innovation in the data economy.

In order to remedy this, the standards spread across various legal acts are to be systematized and combined across legal acts, following the example of Directive 2004/48/EC on the enforcement of intellectual property rights (Enforcement Directive).

Objectives

  • Analysis of the relationship between the regulatory objective, the basis of competence and forms of action/remedies
  • Definition of overarching criteria for interpretation and determination of the relationship between the legal consequences
  • Development of model regulations (toolbox) for the European legislator

Procedure

  • Cross-jurisdictional and cross-regulatory examination of the regulatory and enforcement instruments of selected EU legal acts
  • Identification of contradictions, gaps and enforcement deficits
  • Proposals for improved legislation and application of the law

Selected research questions

  • Fundamental rights: What requirements arise from fundamental rights, in particular the right to effective legal protection, for the relationship between enforcement mechanisms under public and private law?
  • Competence basis: What is the connection between the competence basis and legal consequences?
  • Need for harmonization: How can a uniform (new?) regulatory approach be derived from the current legal acts (DMA, DSA, DA, etc.)?
  • Enforcement technology: To what extent can technical means support effective enforcement?
  • IPR/Territoriality: Can the approach of cross-border orders (one-stop store) be transferred to public law?
  • Civil & civil procedural law: Can a Member State refuse to enforce a sanction ordered by another Member State because national enforcement law does not provide for a suitable measure?
  • Economic analysis: What combination of enforcement mechanisms can be used to avoid an efficient breach?